THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53655/00 by Bolesł aw STANISZEWSKI against Poland

The European Court of Human Rights (Third Section), sitting on 6 October 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr L. Caflisch , Mrs M. Tsatsa-Nikolovska , Mr V. Zagrebelsky , Mr L. Garlicki , Mrs A. Gyulumyan , Mr David Thór Björgvinsson, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 22 April 1999 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Bolesław Staniszewski, is a Polish national, who was born in 1946. He is represented before the Court by Mr Wojciech Hermeliński, a lawyer practising in Warsaw . The respondent Government are represen ted by their Agent, Mr Jakub Woł ąsiewicz, of the Ministry of Foreign Affairs.

A. The circumstances of the case

On 1 September 1970 the applicant was acknowledged as having a third degree disability status (slight disability), due to his poor eyesight.

By a decision of 27 April 1981 the Social Insurance Board in Kamienna Góra ( Zakład Ubezpieczeń Społecznych ) granted him a disability pension ( renta inwalidzka ).

In 1982 the applicant left Poland and settled in Germany . Later on, he moved to Australia and to New Zealand . He did not inform the social insurance authorities about his new address. On 1 April 1982 the Social Insurance Board in Kamienna Góra withheld the payment of the applicant ’ s pension as it had received several postal confirmations that the pension had not been served on the applicant, accompanied with a notice: “the addressee went abroad”.

Since 18 December 1986 the applicant ceased to have a permanent address in Poland .

On 13 January 1992 the applicant, while visiting Poland , lodged a motion with the Social Insurance Board in Kamienna Góra for payment of his pension. He informed the Social Insurance authorities about his two addresses, in Poland and in New Zealand .

In order to establish the applicant ’ s address, in a letter of 21 May 1992 the Social Insurance Board in Ostrów Wielkopolski, competent to deal with the applicant ’ s case, asked him for relevant information. This letter remained unanswered.

On 1 August 1997 the applicant lodged a motion with the Social Insurance Board in Warsaw for payment of the pension. His motion was remitted to the Social Insurance Board in Ostrów Wielkopolski.

By a decision of 17 February 1998 the Social Insurance Board in Ostrów Wielkopolski decided that the applicant ’ s disability pension would be paid to him with a retrospective effect from 1 September 1997 .

On 31 May 1998 the applicant complained to the social insurance authorities that the pension had not been paid to him yet. He requested that the amounts which had not been paid from 1982 until 1997 should be reimbursed to him. He also requested that a decision be given to the effect that he should be entitled to the family benefit.

On 30 June 1998 the social insurance authorities corrected the error concerning the date on which the payment of the pension was to be resumed. Accordingly, the payment was to be resumed from 1 August 1997 , i.e. the first day of the month during which the applicant ’ s motion had been lodged, as provided for by Article 99 of the 1982 Act as amended.

In a letter of 21 July 1998 , in reply to the applicant ’ s letter of 31 May 1998 , the social insurance authorities in Ostrów Wielkopolski recounted the history of the applicant ’ s disability pension and informed him about the decision to resume payments. They also informed the applicant that under the provisions of the Family Benefits Act of 1 December 1994 , only persons residing permanently in Poland were eligible for family benefits.

In a letter of 19 October 1999 the applicant again requested the social insurance authorities to reimburse the amounts which had not been paid after he had left Poland in 1982.

In a letter of 17 November 1999 the Foreign Entitlements Office of the Social Insurance Board explained to the applicant the legal framework of social insurance entitlements of persons who had emigrated in the 1980s, and informed him that the laws in force did not provide for any reimbursement of social insurance benefits which had not been paid during the absence of the entitled person in Poland. The judgment given by the Constitutional Court of 13 November 1992 (see below) did not create a right to such reimbursement. The payments of benefits such as retirement pension and disability pension were to be resumed with effect from the month preceding the date on which the motion for the payments to be resumed was lodged.

B. Relevant domestic law and practice

On 3 November 1992 the Constitutional Tribunal declared that Article 84 (1) items 1 and 4 of the Law on the Social Insurance Benefits of 14 December 1982 was not in accordance with the 1952 Constitution as amended in 1990. Under this provision, the payments of retirement and disability pensions were to be stayed when an entitled person went abroad and was permanently residing in a country with which Poland had not concluded a social insurance bilateral agreement.

The Court considered that the entitlements to a disability or a retirement pension were not entitlements that the state could arbitrarily award, reduce or take away. These entitlements were acquired on the strength of premiums paid to the state-run social insurance system for periods of employment set out by law. They were also dependent on other conditions such as reaching a given age, or becoming disabled. The Court failed to see any constitutional grounds for the regulation allowing to stay payments of such pension to persons permanently residing abroad. The choice of place of residence being a right guaranteed by international instruments for the protection of human rights, a decision to move abroad should not entail any negative consequences in the sphere of validly acquired rights, in particular the rights to social insurance benefits. The impugned provision was consequently in breach of fundamental principles of rule of law as enshrined in the Constitution.

On 29 June 1994 this decision was published in the Journal of Laws and, accordingly, the impugned provisions lost their binding force as from that date.

Article 99 of the 1982 Act read:

“ Social insurance benefits shall be paid beginning from the date on which the person acquires a relevant entitlement, but not earlier than three months preceding the month during which the motion was submitted, or an ex officio decision in respect of the entitlement was given. ”

The Law on a re-assessment of the social insurance benefits of 25 October 1996 , which changed certain provisions of various social insurance laws, amended also Article 99 of the 1982 Act. The amended Article 99 reads:

“ Social insurance benefits shall be paid from the date on which the person acquires a relevant entitlement, but not earlier than from the beginning of a month preceding the month during which the motion was submitted, or an ex officio decision in respect of the entitlement was given. ”

COMPLAINTS

The applicant complained under Article 1 of Protocol No. 1 that he was deprived of his pension and family benefit for fifteen years due to the fact that he was residing abroad. He also complained that these sums will never be reimbursed to him, despite the fact that he has duly acquired his social insurance benefits on the strength of paying the relevant premiums to the State-run Social Insurance system.

He further complained under Article 6 of the Convention about the unfairness of the proceedings before the Social Insurance authorities.

THE LAW

1. The applicant complained under Article 1 of Protocol No. 1 that he was deprived of his validly acquired retirement pension and family allowance for fifteen years merely because that he was residing abroad.

Article 1 of Protocol No. 1 reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

a) The Court first observes that the applicant has not shown that he was ever entitled to the family allowance provided for the applicable provisions of the social insurance laws. It was only in his letter of 31 May 1998 that he requested to be granted such allowance. In reply, he was informed that only persons residing in Poland were eligible for it.

The Court recalls that Article 1 of Protocol No. 1 does not guarantee the right to acquire property (see Van der Mussele v. Belgium , judgment of 23 November 1983, Series A no. 70, p. 23, § 48, and Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002-II). Consequently, as the applicant was never granted the family allowance, he cannot complain that he was deprived thereof. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

b) The Government argue that the Polish authorities cannot be responsible under the Convention for any complaints which refer to the period prior to 10 October 1994 , when Poland ratified Protocol No. 1 to the Convention.

The applicant acknowledges that in his case the breach of Article 1 of Protocol No. 1 originated from the provisions enacted in 1982, prior to the ratification of Protocol No. 1 to the Convention by Poland . However, the application of these provisions created a permanent situation which continued after Poland ratified Protocol No. 1. This was because despite the judgment of the Constitutional Court of 3 November 1992 which found the suspension of payment of retirement and disability pensions to persons living abroad unconstitutional, the state-run social insurance authorities did not automatically resume payments of the disability pension to the applicant.

The Court observes that the Court ’ s jurisdiction ratione temporis covers only the period after the ratification of the Convention or its Protocols by the respondent State. From the ratification date onwards, all the State ’ s alleged acts and omissions must conform to the Convention or its Protocols and subsequent facts fall within the Court ’ s jurisdiction even where they are merely extensions of an already existing situation (see, for example, Yağci and Sargin v. Turkey , judgment of 8 June 1995, Series A no. 319-A, p. 16, § 40, and Almeida Garrett, Mascarenhas Falcão and Others v. Portugal , nos. 29813/96 and 30229/96, § 43, ECHR 2000-I). Accordingly, the Court is competent to examine the facts of the present case for their compatibility with the Convention only in so far as they occurred after 10 October 1994 , the date of ratification of Protocol No. 1 by Poland . It may, however, have regard to the facts prior to ratification inasmuch as they could be considered to have created a situation extending beyond that date (see Broniowski v. Poland [GC], dec. 16 December 2002 , 31443/96, § 74).

In this connection, t he Court first notes that in 1981 the decision was given by which the applicant became entitled to the disability pension to be paid to him every month, on the ground that he complied with applicable requirements that law attached to such a pension at that time.

Hence, insofar as the applicant can be understood as complaining about the adoption of the 1982 law on the basis of which the payment of his disability pension was stayed after he had left Poland, and insofar as he complains about the decision given in 1982 by which the staying of the payment was ordered, this part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

However, the Court further observes that the gist of the applicant ’ s complaint is that this decision given in 1982 produced its effects afterwards in that the disability pension to which he was entitled and which was to be paid to him every month for undetermined period ceased to be paid solely on the ground that he had left Poland . The Court notes that it is in the nature of social insurance pensions such as this concerned in the present case that the are paid periodically. The 1981 decision to grant the applicant the disability pension created a continuous situation in that it provided on his part for a permanent legal entitlement to obtain subsistence means after it had been established that his health made it difficult for him to continue full-time paid employment. The Court is of the view that the results of the 1982 decision therefore produced its results repeatedly, every month, in that a periodical social insurance benefit was not paid as it would have been had this decision not been given.

The Court accordingly considers that the staying of payment of the periodical social insurance pension, awarded on the basis of a final and valid decision, thus created a situation continuing after 10 October 1994 , the date on which Poland became bound by Protocol No. 1. The Government ’ s plea of inadmissibility on the ground of lack of jurisdiction ratione temporis in respect of this aspect of the application must therefore be rejected.

c) Insofar as the application relates to events after Poland became bound by Protocol No. 1, the Government argue that under Article 99 of the 1982 Act the applicant could have lodged a motion to have the payments of his pension resumed from 29 June 1994, i.e. the date on which the judgment of the Constitutional Court of 3 November 1992 was published. It was on that date that the provisions of the 1982 Act on the basis of which the payments of his pension had been stayed lost their binding force. Had the applicant lodged such a motion immediately after 29 June 1992 , the payments could have been resumed, as provided for by Article 99 of the 1982 Act, with effect as from 1 April 1992 , i.e. three months prior to the month during which such a motion would have been lodged.

They further argue that the 1996 amendment to Article 99 of the Act shortened to one month the period for which the payment of a benefit could be made retrospectively.

The applicant argues that even after the Constitutional Court declared the provisions of Article 84 of the 1992 Act unconstitutional, the Polish authorities did not resume payments of the pension to the applicant.

The Court observes that already in November 1992 the provisions which had served as the basis for staying of payment of the applicant pension were declared by the Constitutional Court to be incompatible with the Constitution. It was on 29 June 1994 that this judgment of the Court was published and it was on this date that the impugned Article 84 of the 1982 Act lost its binding force. Hence, the legal basis for staying of the payment of the applicant ’ s pension ceased to exist.

The Court further notes that under the provisions of the 1982 Act, social insurance benefits were to be paid from the date on which the person acquired a relevant entitlement, but not earlier than three months preceding the month during which a relevant motion was submitted. After the 1996 amendments to that Act, this three-month period was shortened to one month.

Therefore, insofar as the applicant could be understood as complaining that the pension due to him after 10 October 1994 , when Poland became bound by Protocol No. 1, was not paid to him, the Court observes that he has not shown that he took steps to obtain payments for the period starting on that date. He submitted his request for payments to be resumed only on 1 August 1997 . The payments of the pension were eventually resumed, under the decisions of 17 February and 30 June 1998 , with effect as from 1 August 1997 , i.e. the first day of the month during which the applicant ’ s request had been lodged as provided for by Article 99 of the 1982 Act as amended in 1996. The applicant had not shown, or argued, that the payment of the pension due for the period starting on 10 October 1994 would have been refused, had he submitted such a request immediately after it had become possible.

Lastly, the Court considers that, following the judgment of the Constitutional Court of 3 November 1992 , the general legal framework applicable to the social insurance entitlements under which a person claiming to be granted a pension was obliged to submit a relevant motion to the competent authorities, was applied to persons in the applicant ’ s situation. Accordingly, the applicant was under an obligation to submit a relevant motion in order to have the payment of his pension resumed. The Court considers that this requirement was not applied to him in a discriminatory manner, so as to negatively affect his situation or to make it unduly difficult to obtain a decision in his favour.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complained under Article 6 of the Convention about unfairness of the proceedings before the Social Insurance authorities.

Even assuming that Article 6 could be deemed applicable to the proceedings conducted before a body which is not of a judicial character, the Court observes that the applicant failed to explain in what way these proceedings were unfair.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Boštjan M . Zupančič Registrar President